TKB User Agreement
The Electrical and Communications Association of Western Australia Inc. ABN (24 450 502 757) of Units 18-20, 199 Balcatta Road, Balcatta WA 6021 (“ECA WA”) is engaged in the business of providing advice and services to its members in the electrical and communications contracting industry for a fee. The TKB User pays an annual membership fee to ECA WA (“Membership Fee”), and seeks access to Technical Information for general use. ECA WA has agreed to provide access to Technical Information in the electrical and communications contracting industry by way of a password protected online Technical Knowledge Base (“TKB”), which access is subject to the terms and conditions set out in this Agreement.
1. Definitions and Interpretation
In these terms and conditions unless the contrary intention appears the following expressions shall have the following meanings:
Agreement means this Agreement between ECA WA and the TKB User.
Commencement Date means the date this Agreement is signed by both parties.
Confidential Information means all information and knowledge (however sourced) concerning any of the procedures, services or customers, existing or future, of ECA WA; Ideas and concepts and all business confidences of ECA WA but excluding any such information, knowledge, ideas and concepts or confidences to the extent that the same are or become public knowledge through no act or failure on behalf of the TKB User, or which the TKB User can show was already in the possession of the TKB User at the time of disclosure to the TKB User and was not acquired directly or indirectly from ECA WA or from any third party under an obligation of confidence;
Copyrighted Material means information available on the TKB which is subject to copyright owned by either ECA WA or a third party.
Force Majeure means any act, omission or circumstance over which either party could not reasonably have exercised control;
Membership Fee means the fee paid to ECA WA for access to services provided by ECA WA.
Operational Date means the date on which ECA WA provides the TKB User with access to the TKB.
Technical Information may include but is not limited to articles, links to legislation and bulletins, Network Operator information, information about Australian Standards, and responses by ECA WA to questions submitted by TKB Users seeking clarification of technical legislation, standards, codes and guidelines, as well as EnergySafety and licensing issues.
Term means the period of time that ECA WA agrees to provide the TKB User with access to the TKB; and
TKB means the Technical Knowledge Base service to be provided by ECA WA to TKB Users pursuant to this Agreement.
TKB User means a person or an entity permitted to access the TKB by ECA WA pursuant to this Agreement.
2. Agreement for provision of access to the TKB
The TKB User agrees to subscribe to access the TKB and ECA WA shall provide the TKB User with access to the TKB upon the terms and conditions contained in this Agreement.
2.2. ECA WA will provide access to the TKB for up to ten (10) employees of the member’s business at any time during the Term.
This Agreement shall commence on the Commencement Date and remain in force for as long as the TKB User is a financial ECA WA member, unless the TKB User’s access to the TKB is cancelled or suspended in accordance with this Agreement, or if written notice of termination of the Agreement on 14 days’ notice is served by one party on the other party in the interim period.
3. Breach of Agreement by Member
3.1. ECA WA reserves the right to monitor the use of the TKB to ensure compliance with this Agreement. If the TKB User breaches one or more of their obligations pursuant to this Agreement or breaches the terms of their ECA WA membership, then ECA WA may in its sole discretion, and without notice, cancel or suspend the TKB User’s access to the TKB.
4.1. ECA WA shall be responsible for providing the Technical Information on the TKB and maintaining the TKB for the Term. In consideration of ECA WA providing access to the TKB to the TKB User, the TKB User shall ensure that the Membership Fee has been paid to ECA WA and the TKB User agrees to comply with the Conditions contained in Clause 5 below. ECA WA reserves the right to charge a fee for access to the TKB, and agrees to give the TKB User fourteen (14) days’ notice of any fee to be charged.
5.1. The TKB User agrees with ECA WA that they shall:
5.1.1. take all reasonable steps to protect access codes and/or passwords for access to the TKB.
5.1.2. take all reasonable steps to ensure that they do not:
(a) use the TKB for the purpose of sharing obscene, abusive, threatening, intimidating, fraudulent or defamatory language, ideas or images.
(b) use any Confidential Information;
(c) sell, reproduce or distribute any of the Copyrighted Material available on the TKB;
(d) infringe the intellectual property rights of third parties in relation to the Technical Information.
5.1.3. allow access to the TKB only to employees of the ECA WA member’s business permitted to access the TKB by this Agreement.
5.1.4. take all reasonable steps to ensure that each of the ECA WA member’s employees uses their own access information to access the TKB.
5.1.5. notify ECA WA within ten (10) days of an employee of a ECA WA member with current access to the TKB ceasing employment with the ECA WA member, so that ECA WA can cancel that former employee’s access to the TKB.
5.2. The obligations set out in clause 5.1, shall be continuing obligations and shall survive the expiration or termination of this Agreement.
5.3. The TKB User acknowledges that the Technical Information is provided as general information and as a guide only and does not constitute legal advice.
6.1. The TKB User shall be responsible for and shall indemnify and keep indemnified ECA WA and its directors, officers and employees from and against liability for all loss, including but not limited to direct loss, indirect loss, consequential loss, loss of profit, reputation or otherwise, damage or injury to persons or property caused wholly or in part by the TKB User or its servants, employees, agents (including any loss, damage or injury which may be suffered by the TKB User or any of its employees, agents) arising directly or indirectly out of the TKB User’s use of the TKB.
7. Intellectual Property
7.1. The TKB User agrees that any Technical Information or information of whatever nature produced or developed by ECA WA pursuant to or in the course of providing access to the TKB, shall remain the sole and complete property of ECA WA. The TKB User does not acquire any interest, property, rights, title or licence in respect of Technical Information provided by ECA WA on the TKB.
8.1. In the event of any dispute arising between the parties relating to the provision of services under this Agreement or the interpretation or application of this Agreement, then such matter shall:
8.1.1 In the first instance be referred by one party to the other and the party shall use all reasonable endeavours to resolve the difference or dispute without resort to future process; and
8.1.2 If the difference or dispute cannot be resolved in such a manner within seven (7) days of the difference or dispute arising then it shall be referred to mediation and if the parties cannot agree as to the appointment of a mediator then the Law Society of Western Australia shall appoint a mediator and the parties shall share the costs of same. The mediator shall act as a mediator and not as an arbitrator. If, after the mediation conference, the parties fail to reach a negotiated outcome, only then the parties are free to utilise all other legal courses of action to resolve the dispute.
9.1. Any notice required to be given by one party to the other party must be in writing and delivered by hand, ordinary post, email or fax to the address of the addressee set out in this Agreement or the other address (if any) notified by the other party to be the address for service of notices.
10.Variation of Agreement
10.1. This Agreement shall not be modified or changed subsequent to its execution except in writing signed by ECA WA and the TKB User.
11.Non-waiver and Severability
11.1. The failure by ECA WA to insist upon strict performance of any of the covenants in this Agreement or any delay by ECA WA in exercising any of its remedies or rights shall not constitute or be deemed a waiver by ECA WA. If a court determines that a provision of this Agreement is unenforceable, illegal or void then the remaining provisions shall nevertheless be unaffected and shall continue in full force and effect.
12. Entire Agreement
12.1. This Agreement contains the entire agreement between the parties and both parties agree that there are no other terms, representations or understandings except those set out in this Agreement.
13.1. This Agreement is governed by the law of the State of Western Australia and the parties agree to submit to the jurisdiction of the courts of that State for any proceedings arising out of this Agreement.
14.1. Each of the parties shall bear their own costs and expenses of and incidental to the preparation and execution of this Agreement.
15.1. The parties shall not be liable for any delay or failure to perform its obligations under this Agreement (other than the obligation to pay money) if such failure or delay is due to Force Majeure